EU Citizenship, Sufficient Resources and the New Stability in Citizenship Case-law
The right to free movement of persons is dependent on having sufficient resources. Workers have a right to free movement because they have a salary. Self-employed persons have free movement rights because they generate income. Job-seekers are looking for a job and are thus destined to be economically active. Tourists move for the purpose of receiving services in another Member State. Free movement is not about good-willed openness, it’s about building a market, and the Treaty and the rules on residence are good proof of it.
However, in past years the Court of Justice has devoted part of its case-law to shape the contours of the statute of vulnerable persons who may happen to exercise free movement but with no apparent economic motive. Infant minors or family members from third countries may find themselves in situations that require movement but for no economic reasons. In some situations, the Court of Justice and the EU legislature have been willing to take a step further and grant the protection they might need. This is mostly the result of the creation of European citizenship and the fundamental rights attached thereto.
In two relevant cases last week, the Court of Justice expanded the scope of situations in which non-economic persons can be deserving of free movement rights, in particular when they lack sufficient resources. Although both cases concern the interpretation of secondary law, they set yet another important yardstick in the definition of EU citizenship not so much as an economic status, but as an individual status protected by law.
In Bajratari (C-93/18), the issue at stake concerned the Albanian parent of a minor infant with Irish nationality, born in Northern Ireland, requesting a derived residence permit in the United Kingdom. The minor was the son of an Albanian couple residing in Northern Ireland since 2012 under a residence permit granted by the UK authorities. When the permit expired, Mrs. Bajratari requested a derived residence permit on the basis of her child’s status as a EU citizen exercising free movement. The issue was partly resolved in the case of Chen, but this time it came with a twist: the family had sufficient resources, as required by Directive 2003/38, to justify the minor’s presence in the UK, but the source of that income was Mr. Bajratari’s unlawful employment (as a result of his residence permit having expired).
In the case of X (C-302/18), the question of resources came up again, but in the context of Directive 2003/109 on the status of third-country nationals who are long-term residents. In the same way that Directive 2003/38 requires sufficient resources to non-economic persons, Directive 2003/109 requires third-country nationals to provide evidence that they have “stable and regular resources” for themselves and their dependent family. However, in the case of X the resources were not originating from a family member residing in the Member State under Directive 2003/109, but from a family member living in a third country. In the case at hand, it was Mr. X’s brother, living back in Cameroon, the person who had sufficient resources and had guaranteed in writing his commitment to provide sufficient means for his brother in Belgium.
In both cases the Court of Justice ruled in favour of the applicants, confirming a wide interpretation of both Directives that facilitates free movement and third-country national’s residence, in spite of the lack of direct source of income. In Bajratari, the Court applied the same rationale as it did in the case of Chen, where a Chinese couple requested residence in the UK on the grounds of their child’s Irish nationality. In Chen, the parents of the infant minor had sufficient resources and were able to prove it, the question was whether a derived residence permit could be granted on the grounds of resources originating from the beneficiaries of that derived right, not the EU citizen. The Court sided with the broader interpretation and ruled that sufficient resources can originate from the parents.
The rationale has now been extended to situations in which such resources are the result of the parent’s illegal work, as a migrant with no residence permit and thus undertaking illegal jobs in order to subsist. A similar result has been reached in X, where the origin of the stable and regular resources required by Directive 2003/109 does not necessarily have to come from the third-country national making use of Directive 2003/109, but another family member living abroad in a third-country, as long as the applicant proves that such resources exist and are, indeed, regular.
Both judgments are revealing for several reasons.
First, it is positive that the two main “residence Directives”, one concerning EU citizens and the other third-country nationals, are interpreted coherently. Whether one likes the outcome or not, it is important that the Court follows a parallel rationale in dealing with two instruments that aim at very similar goals: ensuring an orderly and reasonable system of residence for persons who are encouraged to reside in another Member State, whether because they hold EU citizenship or because they have proved an ability to integrate in the host country after a prolonged period of time. From a policy standpoint, the Court’s parallel moves are sending the correct message in terms of coherence and set an appropriate standard for future legislative initiatives.
Second, it is interesting to see how both judgments are strictly grounded in secondary law, particularly Bajratari. In former rulings in the field of citizenship, the Court’s wide interpretation of Directive 2004/38 came always with a companion interpretation of the Treaties. The Court didn’t feel comfortable enough to double-guess the legislature, so it would reinforce its reading of secondary law with its interpretation of the Treaties. However, in Bajratari, a case which resonates of citizenship elements, the Court doesn’t need the Treaties at all. In fact, Advocate General Szpunar tried hard to show the connexions of the case with the Treaties, and he even compared the situation with one covered under the Ruiz Zambrano doctrine. The Court didn’t need to rely on any of that, it simply undertakes a systematic and teleological interpretation of Directive 2004/38 and comes to the conclusion that resources can be derived from unlawful employment.
Another interesting conclusion has to do with the internal cohesion among chambers of the Court in the field of EU citizenship. For some time, particularly during the days of Föster, Ruiz Zambrano, McCarthy, etc., it was obvious that the Court was struggling to set a voice and a balance over EU citizenship matters. The zigzagging of the Court was most acute when decisions were compared among the different five-judge chambers of that time. It appears as if the Court has come to peace with past contradictions in this domain and it is now acting in an orderly manner. Bajratari was rendered by the First Chamber and X by the Third Chamber. They were also delivered practically at the same time, which means that they probably were deliberated simultaneously, which is the context in which such contradictions usually appear, but not this time. Furthermore, the latest decisions of the Grand Chamber interpreting Article 20 TFEU and the Ruiz Zambrano doctrine (Rendon Marín, CS, Chávez Vílchez, K.A.) are also an example of a consistent and coherent criterion set in motion. The Court seems to have finally found the path that it is comfortable with in a key area of policy.
And it is good to see that such path is one that facilitates and promotes the exercise of free movement of persons, not the contrary. When making a decision as to what kind of citizenship case-law the Court wanted, it fortunately sided with fairness.